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Synopsis

The Supreme Court has said an election petition seeking the relief for re-counting of votes only, without making any plea to declare the election as void or the petitioner as returned candidate, would not be tenable in the eye of law. 

A bench of Justices Bela M Trivedi and SVN Bhatti has further held election contest is not an action at law or a suit in equity but purely a statutory proceeding, provision for which has to be strictly construed. 

Citing the Supreme Court's judgement in the case of Laxmi Singh and Others vs. Rekha Singh and others (2020), the bench said there is hardly any need to reiterate the trite position of law that when it comes to the interpretation of statutory provisions relating to election law, jurisprudence on the subject mandates strict construction of the provisions.

The apex court thus dismissed an appeal filed by Dharmin Bai Kashyap, challenging validity and legality of the Chhattisgarh High Court judgement of April 25, 2022, which set aside an order for recounting of votes undertaken on December 31, 2021 as per the direction by Sub Divisional Officer for the election of Sarpanch held on January 28, 2020.

Kashyap had filed an election petition seeking recounting of votes on the ground there was no sufficient light during the counting of votes. After recounting of votes, the petitioner was declared elected as Sarpanch.

The previously elected Sarpanch filed a writ petition in High Court where a single judge dismissed her plea. She approached the division bench which allowed the appeal on the ground election petition was not in consonance with the Rule 6 of the Chhattisgarh 
Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995.

Before top court, it was argued that said the High Court's division bench wrongly set aside the order as it was correctly recorded that there was no proper right requiring recounting of votes.

The respondent, however, said no such objection was raised either orally or by application in writing for re-counting of votes by the petitioner or her agent, either during the counting or after the completion of counting of votes. The only prayer in the election petition was for re-counting of votes at three selective booths, and such a prayer was not in consonance with Rule 6 of the said Rules of 1995. 

Supreme Court in its judgment had said, "It is well settled principle of law that where a right or a liability is created by a statue, which gives a special remedy for enforcing it, the remedy provided by the statue must be availed of. It is also well settled salutary principle that if a Statue provides for doing a thing to be done in a particular manner, then it has to be done in that manner and in no other manner."

Court, had thus, declared the petitioner having failed to make any application in writing for re-counting of votes as required under Section 80 of the Nirvachan Niyam, 1995, and having failed to seek relief of declarations as required under Rule 6 of the Rules of 1995, the election petition filed by the petitioner before the Sub Divisional Officer seeking relief of re-counting of votes alone was not maintainable. 

Case Title: DHARMIN BAI KASHYAP vs. BABLI SAHU & OTHERS